2017 PLP 1053 (YLR)

WAQAR AHMAD SETH, J.

This Civil Revision is directed against the judgment and decree dated 27.2.2008 passed by learned Additional District Judge-I, Swabi whereby appeal of the respondent against the judgment and decree dated 29.6.2007 passed by learned Civil Judge-VII, Swabi was accepted.

2. Brief facts of the case are that the petitioner/plaintiff brought a suit against respondent for possession through pre-emption in respect of property measuring 12 kanals 17 marlas out of 16 kanals 17 marlas situated at Sheikh Jana Tehsil and District Swabi or whatever determined by the Court. It is averred in the plaint that the respondent without any information and notice to the petitioner, purchased the suit land through mutation No. 1310 attested on 23.12.2004 in lieu of Rs. 2,57,000/- but fancy amount has been entered in the mutation just to defeat the right of pre-emption of petitioner. It is further averred that the petitioner came to know about the suit transaction on 5.4.2005 at 4.00 pm through Jamal Said son of Said Khan in the presence of Haq Nawaz Khan son of Abdur Rehman in the premises of Hujra Bar Ahmad Khail Sheikh Jana and the petitioner there and then declared his intention to pre-empt the transaction, hence, fulfilled the requirements of talb-e-muwathibat and thereafter, on 8.4.2005, notice Talb-e-Ishhad was sent to the respondent to accept his right but in vain, hence, the instant suit.

3. The suit was contested by the respondent by filing written statement. Issues were framed and accordingly evidence of the parties was recorded. The learned trial Court, after hearing the learned counsel for the parties, decreed the suit in favour of petitioner vide judgment and decree dated 29.6.2007. Feeling aggrieved, respondent filed appeal before the learned Appellate Court, which was accepted and suit of the petitioner/plaintiff was dismissed vide judgment and decree dated 27.2.2008. Hence, the instant Revision Petition.

4. I have heard the learned counsel for the parties and have also gone through the record.

5. The learned appellate Court reversed the findings of learned trial Court on issue No.5 mainly on (i) that how the informer PW-6 came to know about the sale transaction, which took place on 23.12.2004 (three months and twelve days) prior to the information (ii) PW4, the plaintiff and Haq Nawaz PW-5 the witness have not explained as to how informer came to know about the sale consideration at so belated stage when the impugned mutation was attested in the open gathering and mutation was obtained by the plaintiff prior to that of information as he has mentioned the same in notice of Talb-e-Ishhad which is Ex.PW-4/1, lastly, the issue was reversed that notice Talb-e-Ishhad as exhibited was a photocopy and no application for secondary evidence was obtained. Record is suggestive that petitioner/plaintiff has mentioned complete detail i.e. day, date, place time and the presence of witnesses at the relevant time while making Talb-e-Muwathibat. The plaintiff in his plaint, notice Talb-e-Ishhad and his statement has stated that on 5.4.2005, Tuesday at the Hujra of Bar Ahmad Khel Sheikh Jana, at 4:00 PM, in the presence of Haq Nawaz Khan PW-5, the informer namely Jamal Said PW-6 informed him regarding the sale transaction. The said statement and contents of plaint and notice Talb-e-Ishhad are consistently narrated by the informer Jamal Said PW-6 and supported by PW-5 Haq Nawaz the witness of Talb-e-Muwathibat as well as Ishhad. Lengthy cross-examination was done, but in this respect respondents failed to shatter the mode and manner of Talb-e-Muwathibat as well as Talb-e-Ishhad. Learned appellate Court, (sic) first reasons regarding the information to the informer is not founded in the law, nowhere it is mandatory or even requirement under the law or precedent on the subject that informer is bound to clarify that from where and from whom he received the information. If the law is stretched to this particular extent then there would be no end to the information of the informer and it would go on and on. As regarding the information conveyed to the petitioner/ plaintiff by the informer after three months and twelve days of the attestation of the mutation is concerned, the findings of the appellate Court are based on presumptions as there is no such suggestion put by the respondents/defendants in their cross-examination to the PWs nor there is anything on record showing that prior to the date given by the plaintiff and his informer they had the knowledge regarding the present information.

6. The learned appellate Court has referred to notice Talb-e-Ishhad, Ex.PW4-1, that plaintiff has obtained the copy of mutation prior to date of information. The said notice Ex. PW-4/1 perused with the help of both the counsel, twice but nowhere could found that it is mentioned in the said notice that copy of the mutation in dispute was obtained prior to the information, so conveyed. Lastly the appellate Court while reversing the issue No.5 has held that the notice Talb-e-Ishhad Ex.PW-4/1 is a photocopy and no permission to exhibit the same as secondary evidence, was obtained. Admittedly, the notice in original was sent through registered post and the receipt of which is, although not specifically denied in their written statement but in this respect PWs-1 and 3, stated that being postman they have received and delivered the registry i.e. notice Talb-e-Ishhad. Ex.PW-1/1 is the receipt showing the thumb impression of Shan Muhammad and the name/signature of Muhammad Qamar, as witness to the same. According to section 13 of the Pre-emption Act, it is the duty of the pre-emptor to send/dispatch a notice of Talb-e-Ishhad on the proper address, duly signed by two marginal witnesses. In the instant case, there is no denial or objection to the address of the addressee and according to section 26 of the General Clauses Act, any registered document unless and until received un-served back, the presumption of its service/delivery is there. Once the original notice has been dispatched to the addressee and it is not received unserved then exhibiting the original is beyond any question and it is normal to exhibit the photocopy of the same. In the instant case, it is also on record and in the evidence of PWs that notice Talb-i-Ishhad was drafted/ written and its photocopy was obtained and thereafter the original as well as the photocopy was got signed by the concerned, which also shows that both were original, as signature on the photocopy which was got exhibited was originally signed. In the case of Hayat Muhammad and others v. Mazhar Hussain reported in 2006 SCMR 1410 it has been held that:-- "

S. 13(3)

Constitution of Pakistan (1973), Art. 185(3)

Right of pre-emption, exercise of

Notice of Talb-i-Ishhad

Proof

Suit and appeal of pre-emptor were concurrently dismissed by trial court and appellate court on the ground that performance of Talb-i-Ishhad was not proved, as there was no evidence on record

High Court in exercise of revisional jurisdiction set aside the concurrent findings of fact by the Courts below and remand the case to trial court for decision afresh

Validity

Trial court as well as appellate court had wrongly understood the provision of S. 13(3) of Punjab Pre-emption Act, 1991

Pre-emptor was required to send the notice through registered post acknowledgment due wherever postal facility was available

Pre-emptor was not obliged to see that the notice had reached the addressee

Law presumed that if a prepaid and properly addressed notice was handed over to post office, the same would reach its destination in due course of mail

High Court was right in holding that pre-emptor succeeded to establish performance of Talb-i-Ishhad by sending notice as required by law

Supreme Court declined to interfere with the remand order passed by High Court

Leave to appeal was refused. Likewise in the case of Asif Rasheed Khan Durrani v. Haji Hazrat Gul, reported in 2010 CLC 27 it has been held which is reproduced as under:-- "

Ss. 6 & 13

Suit for pre-emption

Making of Talbs

Trial Court decreed the suit but appellate court reversed the judgment/decree passed by the trial court, holding that plaintiff had failed to establish the performance of Talb-e-Muwathibat and that receipt of notice by the son of the defendant did not stand established

Case of the plaintiff was that he was informed by the informer about the sale in question in the presence of two witnesses produced by him

Validity

All the three witnesses had supported the stance of the plaintiff on every material aspect

Appellate Court should not have altogether ignored the consistent evidence of three witnesses thoroughly cross-examined by the other side, wherein nothing contradictory could be brought from them

Plaintiff had proved the making of Talb-e-Muwathibat through evidence which was consistent and confidence inspiring

Notice in respect of Talb-e-Ishhad was prepared and sent to the defendant in accordance with law

Plaintiff/ pre-emptor was not required to prove that same was received by the defendant

Finding of the appellate court on the relevant issue was not based on proper appreciation of evidence

Impugned judgment and decree passed by the appellate court, were set aside and that of the trial court was restored. In the case of Haji Amanullah and 4 others v. Abdur Rasheed reported in PLD 2011 Peshawar 102 (b) it has been held that:- "

S. 13

Talb-e-Ishhad, notice of

Requirements

Scope

Such notice, if served and contained names of two witnesses, would be deemed to be in accordance with law. In the case of Azam Khan v. Shafiullah Khan reported in 2011 MLD 1966 it has been held as under:-- "

S. 13

Qanun-e-Shahadat (10 of 1984), Art. 177

Pre-emption suit

Notice of Talb-e-Ishhad, performance of

Proof

Photostat copy of such notice exhibited in evidence in statement of its scribe and two marginal witnesses without proving same through secondary evidence

Validity

Original of such notice was supposed to be in possession of vendee, thus, pre-emptor had no option except to produce its Photostat copy, which would be sufficient for proof of such Talb

Pre-emptor had proved receipt of such notice by vendee through A/D card and evidence of postman

Suit was decreed in circumstances. In similar situation it has been held in the case of Haji Bhai Khan v. Saifullah Khan reported in PLD 2012 Peshawar 51(d) which says that:-- "

S. 13

Pre-emption suit

Talb-i-Muwathibat and Talb-e-Ishhad, performance of

Proof

Plaint and Talb-e-Ishhad finding mention of acquisition of knowledge by plaintiff about sale through suit mutation, announcement of his intention to pre-empt same and details of suit land

Defendant neither pleaded in written statement not to have received notice of Talb-i-Ishhad nor appeared in person as witness to deny factum of its receipt

Validity

Plaintiff had sufficiently complied with requirements of Talbs

Defendant's attorney in his statement had not expressly denied report of postman--Presumption of service in such circumstances would arise unless rebutted

Nothing on record to rebut service of notice of Talb-i-Ishhad and report of postman

Suit was decreed in circumstances. In the case of Mst. Farzana Bibi v. Manzoor Elahi and others, reported in 2006 CLC 1669 (b) & (c) it has been held as under:-- (b) "

Ss. 6 & 13

Suit for pre-emption

Knowledge of sale of suit property

Making of Talbs

Burden was on defendants to prove that plaintiff had obtained knowledge of sale in question prior to date plaintiff was informed in a Majlis or meeting, but no such evidence had been produced by defendants

No one was required by law or principle of law or rule of justice and equity to take up the burden of any other person

In absence of any other alternate evidence of defendants in that respect only evidence regarding date time of place of information and Majlis was that of plaintiff which could not be rebutted by defendants

It was never the intention of law to compel pre-emptor/plaintiff to prove that notices were received by defendants

Only duty of pre-emptor was to prove that he/ she sent notices and that had been proved by plaintiff

No efforts had been made by defendants to show that something other than the notices were sent to them through registered A.D letters

Postman had categorically stated that registered letters were received by defendants

Plaintiff, in circumstances had proved making of Talb-e-Ishhad by sending notices in writing attested by two witnesses under registered cover and acknowledgment due to vendee/defendant. (c)

Ss. 6, 12 & 13

Civil Procedure Code (V of 1908), S. 115

Suit filed by plaintiff/pre-emptor was dismissed both by the trial court and appellate court below

Plaintiff had filed revision against said concurrent findings of courts--Plaintiff admittedly was a co-sharer in suit property, while defendants did not have such a right

Sale consideration as per market value of suit property had been paid by defendants in good faith as claimed by them

Plaintiff had proved making of Talb-i-Muwathibat and other matters except information to plaintiff, were not material

Impugned judgments of courts below were set aside and decree was granted to plaintiff as prayed for.

7. Lastly it is held that that the appellate court while reversing the issue No.5 has given no reasons, what to say of plausible and has based its judgment on mere presumptions and speculations. The minor and insignificant discrepancies are always ignored by the judicial wisdom and in this respect judgment of Yar Muhammad Khan v. Bashire Ahmad reported in PLD 2003 Peshawar 179 (a), (b) & (e) is relied upon which is reproduced as under:-- (a) "

Ss. 6 & 13

Civil Procedure Code (V of 1908), S. 115

Suit for pre-emption

Making of Talbs

Proof of

Courts below while giving findings on issue regarding Talbs, on very minor and ignorable contradictions, had concluded that, due to contradictory evidence, plaintiff had failed to prove making of Talbs according to law

Court in making appraisal of oral evidence on question of Talbs, by indulging in strict scrutiny to find faults minor omissions and contradictions, had caused grave prejudice to the pre-emptors

Such approach by Courts below ran counter to sound judicial principles because rules and standards for appraisal of evidence in civil cases were different from those employed in criminal cases as the law has laid down different standards of proof for different categories of cases

Approach and representation shown by Courts below in declaring and branding witnesses of Talbs as false or untruthful because of minor contradictions and omissions in their evidence was not a desirable practice and was disapproved

First Talb called Talb-e-Muwathibat' like any other fact was to be established through oral evidence and to prove the same law had not provided for any particular number of witnesses and being primarily a question of act, could be proved through evidence of pre-emptor alone if same was cogent

Witnesses of Talbs, in the present case when examined were subjected to a very taxing and searching cross-examination and usually question of no relevance and having no direct nexus with fact in issue, were put to witnesses

Such prac-tice was not acceptable at all

High Court while exercising revisional jurisdiction though was not required to enter upon reappraisal of evidence, but in the present case courts below having acted in disregard of law and well settled principles relating to appraisal of evidence resulting into miscarriage of justice, findings of courts below were not immune from corrective process of High Court under S. 115, C.P.C.

High Court accepting revision petition set aside judgments and decrees of Courts below. (b)

Arts. 70 & 71

Oral evidence, recording of

Judicial wisdom preferred to ignore minor and insignificant discrepancies in statement of witnesses more particularly when they were examined after a long time on the facts to which they were witnesses

Such principle was to be more liberally applied in cases were witnesses were illiterate and rustic villagers as one could not reasonably expect of such witnesses to be more accurate on point of time and date

Any contradiction or insignificant discrepancies would not be used as a device to defeat substantive rights

Only glaring omission, contradictions and dishonest improvement introduced in evidence of witness would render the same unreliable. (c)

Ss. 6 & 13

West Pakistan General Clauses Act, (VI of 1956), S. 26

Suit for pre-emption

Making of Talb-e-Ishhad

Serving of notice

Once notice of Talb--i-Ishhad was sent through registered post with a proper address of defendant/vendee, then a strong statutory presumption would arise that service of notice had been effected and same had reached the addressee

Statutory presumption attached to same would not require evidence of delivery by postman or booking clerk of post office concerned and only duly stamped receipt issued by post office authorities and acknowledgment card if any, received back would be sufficient proof that notice was duly served upon the defendant/ vendee

Taking of evidence of said witnesses in circumstances, was unnecessary formality.

8. The upshot of above discussion is that, the instant revision petition is allowed, the impugned judgment of appellate Court is set aside while that of learned trial Court is restored by decreeing the suit of petitioner/plaintiff. Parties are left to bear their own costs. ZC/69/P Revision allowed.